FIRST SECTION
DECISION
Application no. 73874/11
Mohammed ABUBEKER
against Austria and Italy
The European Court of Human Rights (First Section), sitting on 18 June 2013
as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Guido Raimondi,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 30 November
2011,
Having regard to the interim measure indicated to Austria under
Rule 39 of the Rules of Court
Having regard to the observations submitted by the respondent
Governments and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mohammed Abubeker, stateless,
was born in 1967 and resides at present in Traiskirchen. He is represented by
Mrs N. Lorenz, a lawyer practising in Vienna.
The Austrian Government were represented by their
Agent, Ambassador H. Tichy, Head of the International Law Department at
the Federal Ministry of European and International Affairs. The Italian
Government were represented by their Agent, Ms. E. Spatafora, and their
co-agent, Ms. P. Accardo.
A. The circumstances of the case
The facts of the case, as submitted by the
parties, may be summarised as follows.
1. Asylum proceedings and stay in Italy
The applicant entered Italy on 3 August 2007,
where his fingerprints were taken firstly at the Questura in Crotone. It
was noted that the applicant was born in Eritrea in 1967 and that he had
entered the European Union illegally. He was then transferred to the “S.
Anna” Reception Centre at Isola di Capo Rizzuto, where his
fingerprints were taken again on 29 August 2007 and where he was registered
as an asylum seeker.
On 14 September 2007 the Territorial Commission
for the Recognition of International Protection decided that the applicant was
not entitled to the status of a recognised refugee, but that he met the
requirements to obtain protection on humanitarian grounds. Thereupon, the
applicant was granted leave to remain on humanitarian grounds and a travel
document, both valid until 13 September 2008. According to the records of the
authorities, the applicant left the reception centre of his own volition after
he had collected his papers.
It seems that the applicant then left for
Germany. On 8 February 2008 Italy was requested by Germany to take the
applicant back under Article 16 § 1 c of the Council Regulation (EC)
No 343/2003 (“the Dublin II Regulation”, hereinafter “the Dublin
Regulation”). Italy accepted jurisdiction, and on 22 April 2008 the applicant
was transferred to Italy.
From 22 May 2008 until 17 May 2009, the applicant
was an inmate in a facility of the “Sistema di Protezione per Richiedenti
Asilo e Rifugiati” (Protection System for Asylum Seekers and Refugees,
hereinafter “SPRAR”), which he left voluntarily. According to the files, the
applicant was staying on 1 August 2008 at a residence belonging to the Jesuit
Refugee Service in Rome.
On 7 July 2009 the Questura in Rome
granted the applicant leave to remain on the basis of subsidiary protection,
which was valid until 7 July 2012.
2. Asylum proceedings in Austria
In November 2010 the applicant came to Austria
and was taken into detention with a view to expulsion. On 19 February 2011 he
lodged an asylum claim in Austria. The applicant stated that he did not want to
return to Italy, and that he would have been forced to sleep in the streets
there and would not have had any access to financial subsistence, housing or
food. He had had leave to remain in Italy on humanitarian grounds, but had
returned his ID card to the authorities because he wanted full asylum status.
He explained that he was suffering from diabetes, asthma and a dust mite
allergy, and had psychological problems.
On 9 April 2011 the Federal Asylum Office (Bundesasylamt)
rejected the applicant’s asylum request and declared that Italy had
jurisdiction regarding the asylum proceedings pursuant to Article 16 § 2 of the
Dublin Regulation. It also ordered that the applicant be transferred to Italy.
The Federal Asylum Office dismissed the applicant’s claims that he had severe
medical and psychological problems. Referring to country reports on Italy it concluded
that the applicant would have access to financial subsistence in Italy and that
being sent there would not breach Article 3 of the Convention.
The applicant lodged an appeal against that
decision. On 2 May 2011 the Asylum Court (Asylgerichtshof) awarded
suspensive effect to the applicant’s appeal.
On 12 May 2011 the Asylum Court quashed the
decision of the Federal Asylum Office and ordered it to complement the country
information on Italy in fresh proceedings, to make enquiries about what the
applicant’s residential status in Italy would be if he were returned there, and
to establish further facts about the applicant’s health.
Thereupon, on 20 June 2011, the Federal Asylum
Office contacted the Dublin Unit in Italy and asked for information on what the
applicant’s residence status would be in Italy and if he would have access to
the medication Metamorphin in Italy. It repeated and detailed its requests for
information on 6 July, on 21 July and on 1 August 2011. The Dublin Unit Italy
responded to the Austrian authorities that asylum seekers and persons with
subsidiary protection had access to subsistence and health support.
On 20 October 2011 the Federal Asylum Office
again rejected the applicant’s asylum request pursuant to the Dublin Regulation
and ordered the applicant’s removal to Italy. Referring to country reports on
Italy from 2009, 2010 and 2011, it found that the “SPRAR” offered lodgings and
other support for approximately 3,000 asylum seekers for the duration of six
months. There were also 2,000 places in centres in which asylum seekers were
supposed to stay for a maximum of six months, although there were exceptions
for vulnerable persons. Outside those structures, private initiatives and
municipalities organised sleeping places and accommodation for asylum seekers.
The reports also stated that asylum seekers had access to subsistence and
medical support, at least at the preliminary examination stage. However, only
after registration of an asylum request would an asylum seeker have a right to
accommodation and subsistence. A “Dublin returner” was requested to present
himself before the Questura for his or her legal status to be
identified. Asylum seekers had to initially register with a health unit, after
which they had access to medical treatment in public hospitals. However, asylum
seekers without an address had difficulty in registering for medical treatment
and subsistence. The Federal Asylum Office also referred to the fact that the
applicant had undergone a psychiatric examination in May 2011 that showed an
“adjustment disorder” (Anpassungsstörung). Therapeutic consultations had
been recommended. However, the applicant had not taken up the psychiatric
treatment offered. It could not be shown that the applicant’s mental health
would worsen. In any event, the applicant would have access to subsistence if
returned.
The applicant appealed against that decision. On 14 November 2011 the Asylum Court again awarded
suspensive effect to the applicant’s appeal.
On 23 November 2011 the
Federal Asylum Office sent an email to the association Arciconfraternita San
Trifone informing them of the rejection of the applicant’s asylum request
in the first instance and of the pending guardianship proceedings (see below,
paragraphs 22-25) in view of a possible removal of the applicant to Italy, in
which case the association might wish to put in place “appropriate safeguards”.
It also informed the Dublin Unit Italy of the pending guardianship proceedings.
On 28 November 2011 the Asylum
Court dismissed the applicant’s appeal as unfounded. It referred to the Council
Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third-country nationals or stateless persons as
refugees or as persons who otherwise need international protection, and of the
content of the protection granted, to the Council Directive 2005/85/EC of 1
December 2005 on minimum standards on procedures in Member States for granting
and withdrawing refugee status, and to the Council Directive 2003/9/EC of
27 January 2003 laying down minimum standards for the reception of asylum
seekers, which were all also applicable in respect of Italy, and concluded that
Italy had an unobjectionable asylum practice and offered access to accommodation,
subsistence and medical treatment for asylum seekers.
With regard to the
applicant’s representative’s argument, claiming that the deadline for Italy to
resume jurisdiction for the applicant’s asylum proceedings had expired, it
found that with the decision of suspensive effect taken on 14 November 2011 the
deadline had not expired, and that Italy had jurisdiction regarding the
applicant’s asylum claim.
The Asylum Court further
stated that, in contrast to the situation in Greece, there was no recommendation
from the United Nations High Commissioner for Refugees ( “the UNHCR”) to
refrain from removals to Italy, and that the overall reports did not show a
comparable situation for asylum seekers with the one in Greece. With regard to
the applicant’s physical illnesses, it stated that he had access to the Italian
health system. It stated that it had ordered the Federal Asylum Office to
contact the Italian authorities in the event of a transfer, to ensure that the
applicant was welcomed in Italy and would receive the necessary medical help.
With regard to the
critical report of the association Pro Asyl [a German NGO] from 2011 about the
situation of refugees in Italy, it alleged that the authors of that report
worked in the field of counselling of refugees and had an agenda which favoured
a critical approach to Italy as a host state. Furthermore, the situation of
boat refugees in the south of Italy was not comparable to that of
Dublin-returners. With regard to the applicant’s mental health, the Asylum
Court stated again that he had access to treatment in Italy, referred to the
Court’s case-law in that matter, and concluded that removal would not be in
breach of Article 3.
The Constitutional Court
(Verfassungsgerichtshof) dismissed the applicant’s request for legal aid on 2
March 2012, and refused to deal with his complaint due to lack of prospects of
success.
3. The guardianship proceedings in Austria
On 25 October 2011 the
applicant’s representative applied to the Baden District Court (Bezirksgericht
Baden) for guardianship proceedings to be initiated in respect of the
applicant. He claimed that he had become aware of a severe aggravation of the
applicant’s mental health status during legal counselling, and that there was a
risk that the applicant would not be able to pursue his asylum proceedings in
his own best interests.
On 1 December 2011, and
after an initial hearing on 21 November 2011, the Baden District Court
appointed a provisional guardian for the applicant for the course of the
guardianship proceedings and for representation in proceedings before
authorities and courts, with particular regard to asylum proceedings. On the
same day, the Baden District Court commissioned a psychiatric report on the
applicant, to be submitted to the court within eight weeks.
On 22 December 2011 the applicant’s
representative supplied a power of attorney in which the applicant’s guardian
entrusted him to represent the applicant in the proceedings before the European
Court of Human Rights.
On 20 March 2012 the Baden District Court
appointed a guardian for the applicant’s representation before authorities and
courts. It based its decision on an expert opinion that diagnosed the applicant
with a severe psychological impairment whose clinical status display was
comparable to florid paranoid schizophrenia. The applicant suffered from a
bizarre delusion that absorbed his feeling and thinking. He was very irritable
and completely occupied by a delusion that he was being pursued by Satanists suffering
from Aids. At least in the past the applicant had linked his psychotic status
with hallucinations of being tortured and manipulated by spirits. The applicant
was further the victim of hallucinations of a lioness as Satan.
4. The reopening of the asylum proceedings in Austria
On 14 May 2012 the Asylum Court, at the
applicant’s request, ordered the Federal Asylum Office to reopen the applicant’s
proceedings. It referred at length to the psychiatric expert opinion obtained
in the guardianship proceedings, which had further established that the
applicant’s psychotic symptoms had started in summer or autumn 2011 and that
the applicant claimed to have been suffering from psychological problems since
1998. The expert had also stated that as regards the applicant’s fitness to be
questioned his answers would be coloured by his psychotic status and that thus,
he was not fit to be questioned, especially in the context of guardianship
proceedings, asylum proceedings and his personal situation. Overall, the guardianship
proceedings had shown that the applicant was not able to take care of his own
affairs without the risk of suffering a disadvantage.
The Asylum Court concluded that in the former
proceedings it had wrongly acted on the assumption that the applicant was
legally capable (prozeßfähig) to follow the proceedings adequately. The
Asylum Court, again in the former proceedings, would have needed to either
appoint a guardian for the applicant or to stay the proceedings until the
guardianship proceedings before the District Court had been concluded. It was
not doubted that the applicant’s psychological disorder was already manifest at
the time of the Asylum Court’s decision of 28 November 2011, which was why the
proceedings had had to be reopened. It stated further that because of the
necessary further investigations and further interviews, the Asylum Court
itself could not rule on the asylum request, possible subsidiary protection and
a possible expulsion order. Therefore, the proceedings had to be continued by
the Federal Asylum Office.
The reopened asylum proceedings in Austria are
still pending.
5. Rule 39 of the Rules of the Court
On 9 December 2011 the Court applied the interim
measure under Rule 39 and requested the Austrian Government to stay the
applicant’s expulsion to Italy until further notice.
B. Relevant domestic, European and Italian law and
practice
The relevant European and Italian law,
instruments, principles and practice have only recently been exhaustively
summarised, in Mohammed Hussein v. the Netherlands and Italy (dec.), no.
27725/10, §§ 25-28 and 33-50, 2 April 2013. In the following, only information
that is particularly relevant for the present case will be repeated.
1. Council Regulation (EC) No 343/2003 (the Dublin
Regulation)
Under the
Regulation, the member States must determine, on the basis of a hierarchy of
objective criteria (Articles 5 to 14), which member State bears responsibility
for examining an asylum application lodged on their territory. The aim is to
avoid multiple applications and to guarantee that each asylum seeker’s case is
dealt with by a single member State.
Where it is established that an asylum seeker
has irregularly crossed the border into a member State, having come from a
third country, the member State thus entered is responsible for examining the
application for asylum (Article 10 § 1). This responsibility ceases
twelve months after the date on which the irregular border crossing took place.
Where the criteria in the regulation indicate
that another member State is responsible, that State is requested to take
charge of the asylum seeker and examine the application for asylum
(Article 17).
By way of derogation from the general rule, each
member State may examine an application for asylum lodged with it by a
third-country national, even if such an examination is not its responsibility
under the criteria laid down in the Regulation (Article 3 § 2). This
is called the “sovereignty” clause. In such cases the State concerned becomes
the member State responsible and assumes the obligations associated with that
responsibility.
2. Austrian Asylum Act
Section 5 of the Asylum Act 2005 (Asylgesetz)
provides that an asylum application shall be rejected as inadmissible if, under
treaty provisions or pursuant to the Dublin Regulation, another State has
jurisdiction to examine the application for asylum. When rendering a decision
rejecting an application, the authority shall specify which State has
jurisdiction in the matter.
Section 12 establishes de facto protection
against deportation (faktischer Abschiebeschutz) for aliens who have lodged an
application for asylum. However, section 12a provides that a person whose
asylum application has been rejected pursuant to lack of jurisdiction under the
Dublin Regulation (section 5 of the Asylum Act) is not entitled to such
de-facto protection against deportation in the event that he or she lodges a
second asylum application.
3. Asylum proceedings in Italy
Again, reference is taken to the extensive
description of the Italian asylum procedure and domestic law in Mohammed
Hussein, cited above, §§ 33-41.
In particular it is noted (see ibid., § 36) that
the Territorial Commission for the Recognition of International Protection can:
- grant
asylum by recognising the petitioner as a refugee within the meaning of the
1951 Geneva Convention relating to the Status of Refugees;
- not
recognise the petitioner as a refugee but grant subsidiary protection under the
terms of Article 15c of the Council Directive 2004/83/EC of 29 April 2004, on
minimum standards for the qualification and status of third-country nationals
or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted (“the Qualification
Directive”) as implemented by the Legislative Decree (decreto legislativo)
no. 251/2007;
- not
grant asylum or subsidiary protection but grant leave to remain for compelling
humanitarian reasons under the terms of Law Decree (decreto legge) nos.
286/1998 and 25/2008; or
- not
grant the petitioner any form of protection.
A person granted subsidiary protection will be
given leave to remain with a validity of three years, which can be renewed by
the Territorial Commission that granted it. This leave can further be converted
into a residence permit for the purposes of work in Italy, provided this is
requested before the expiry of the validity of the leave to remain, and
provided the person concerned holds an identity document. Leave to remain
granted for subsidiary protection entitles the person concerned, inter alia, to an aliens’ travel document, to work, to family reunion and to benefit
from the general schemes for social assistance, health care, social housing and education under Italian domestic law.
A person granted leave to remain for compelling
humanitarian reasons will be provided with a residence permit with a validity
of one year which can be converted into a residence permit for the purposes of
work in Italy, provided the person concerned holds a passport. Leave to remain
granted on humanitarian grounds entitles the person concerned to work, to health care and, if he or she has no passport, to an aliens’ travel document (see ibid., §§
38-39).
4. Reception conditions in Italy
The reception scheme and the reception
conditions in Italy are summarised again in Mohammed Hussein, cited
above, §§ 42-50.
COMPLAINTS
The applicant complained of ill-treatment under
Article 3 of the Convention in respect of Italy in that he had not had access
to accommodation, to medical treatment or to subsistence in Italy whilst he was
there.
The applicant also complained under Article 3 of
the Convention in respect of Austria that a return to Italy under the Dublin Convention
would subject him to a real risk of ill-treatment within the meaning of that
provision in that he would not have access to accommodation, to medical
treatment and to subsistence in Italy - circumstances that were aggravated by
the applicant’s precarious physiological and psychological health status.
THE LAW
The applicant, who complained that he suffered
ill-treatment in Italy and of a real risk of ill-treatment upon a return to
Italy under the Dublin Regulation, relied on Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Court will at first summarise the general
case-law principles applying to the complaints at issue and subsequently
firstly examine the complaint directed against Italy and then that directed
against Austria.
A. General Principles
According to the Court’s established case-law,
Contracting States have the right, as a matter of well-established
international law and subject to their treaty obligations, including the
Convention, to control the entry, residence and expulsion of aliens (see, among
many other authorities, Abdulaziz, Cabales and Balkandali v. the United
Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France,
21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The
Court also notes that the right to political asylum is not contained in either
the Convention or its Protocols (see Vilvarajah and Others v. the United
Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v.
Austria, 17 December 1996, § 38, Reports 1996-VI).
However, deportation, extradition or any other
measure to remove an alien may give rise to an issue under Article 3, and hence
engage the responsibility of the Contracting State under the Convention, where
substantial grounds have been shown for believing that the person in question,
if removed, would face a real risk of being subjected to treatment contrary to
Article 3 in the receiving country. In such circumstances, Article 3
implies an obligation not to remove the individual to that country (see Soering
v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah
and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R.
v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v.
Turkey, no. 40035/98, § 38, ECHR 2000-VIII; Salah Sheekh v.
the Netherlands, no. 1948/04, § 135, 11 January 2007; and Hirsi
Jamaa and Others v. Italy [GC], no. 27765/09, § 114, ECHR 2012).
The assessment of whether there are substantial
grounds for believing that the applicant faces a real risk inevitably requires
that the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (see Mamatkulov and Askarov v.
Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I).
These standards imply that the ill-treatment the applicant alleges he will face
if returned must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this is relative, depending on all the
circumstances of the case (see Hilal v. the United Kingdom, no.
45276/99, § 60, ECHR 2001-II). The Court reiterates that it is in
principle for the applicant to adduce evidence capable of proving that there
are substantial grounds for believing that, if the measure complained of were
to be implemented, he or she would be exposed to a real risk of being subjected
to treatment contrary to Article 3 (see N. v. Finland, no.
38885/02, § 167, 26 July 2005).
In order to determine whether there is a real
risk of ill-treatment in the present case, the Court must examine the
foreseeable consequences of sending the applicant to Italy, bearing in mind the
general situation there and his personal circumstances (see Vilvarajah and
Others, cited above, § 108 in fine). It will do so by assessing
the issue in the light of all material placed before it, or, if necessary,
obtained proprio motu (see H.L.R. v. France, cited above, §
37, and Hirsi Jamaa and Others, cited above, § 116).
The Court
further reiterates that the mere fact of return to a country where one’s
economic position will be worse than in the expelling Contracting State is not
sufficient to meet the threshold of ill-treatment proscribed by Article 3 (see Miah
v. the United Kingdom (dec.), no. 53080/07, § 14, 27 April 2010, and, mutatis
mutandis, N. v. the United Kingdom [GC], no. 26565/05,
§ 42, ECHR 2008), that Article 3 cannot be
interpreted as obliging the High Contracting Parties to provide everyone within
their jurisdiction with a home, and that this provision does not entail any
general obligation to give refugees financial assistance to enable them to
maintain a certain standard of living (see M.S.S. v. Belgium and
Greece [GC], no. 30696/09, § 249, ECHR 2011).
Aliens who are subject to removal cannot in
principle claim any entitlement to remain in the territory of a Contracting
State in order to continue to benefit from medical, social or other forms of
assistance and services provided by the removing State. In the absence of
exceptionally compelling humanitarian grounds against removal, the fact that
the applicant’s material and social living conditions would be significantly
reduced if he or she were to be removed from the Contracting State is not
sufficient in itself to give rise to a breach of Article 3 (see, mutatis
mutandis, N. v. the United Kingdom, cited above, § 42; Sufi
and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 281-292, 28 June 2011; and Mohammed
Hussein, cited above, § 71).
If the
applicant has not yet been removed when the Court examines the case, the
relevant time will be that of the proceedings before the Court (see Saadi
v. Italy [GC], no. 37201/06, § 133, ECHR 2008, and A.L. v. Austria,
no. 7788/11, § 58, 10 May 2012). A full assessment is called for, as
the situation in a country of destination may change over the course of time
(see Salah Sheekh, cited above, § 136).
B. The applicant’s complaint against Italy
1. The parties’ submissions
The Italian Government emphasised that the
applicant had been granted leave to remain under the head of subsidiary
protection, which allowed him to stay in Italy for three years. The leave to
remain could be renewed on expiry, so long as the factors that had previously
supported the original issuance of the permit still existed. The applicant’s
leave to remain thus awarded allowed him access to work and education and could
have been converted to a work permit if the requirements had been met.
The Italian Government further stated that in
view of the information so far received by the Austrian authorities, the
applicant would, in the event of a transfer to Italy, be considered a
vulnerable person, and appropriate housing would be arranged. They emphasised also
that the Austrian authorities had been requested, in the event he was removed
to Italy, to provide full and up-to-date medical records, including information
on the medical treatment the applicant had been receiving in Austria.
Firstly, the applicant contested the Italian
Government’s observations, in that the Italian Government had given
contradictory information on where the applicant had been housed in August 2008
and what kind of residence status he had been awarded. Furthermore, the Italian
authorities had not been aware of where the applicant’s was living between
May 2009 and November 2010, before he came to Austria.
The applicant also claimed that the status of
“leave to remain on humanitarian grounds” would not have allowed him access to
social support and medical assistance. He asserted that he had been homeless,
that he had had to sleep in the streets and did not have money to buy food and
other essentials. The lack of housing and access to medical treatment amounted
to treatment contrary to Article 3 of the Convention.
As regards the Italian Government’s observations
that the applicant had left the reception centres both times of his own
volition, the applicant stated that he was suffering from florid paranoid
schizophrenia that might already have been apparent during his stay in Italy,
and that it was therefore possible that he had suffered from psychotic episodes
of varying duration. He therefore could not have effectively waived Government
assistance. Finally, the housing provided for the applicant was in any event
inadequate.
2. The Court’s assessment
The Court notes that the applicant, upon arrival
in Italy in the summer of 2007, was taken to a reception centre and granted
leave to remain on humanitarian grounds, valid for one year. When he received
his papers, the applicant left the reception centre of his own volition. After
his return from Germany, the applicant was again admitted to a reception
facility in spring 2008. In July 2009 the applicant received leave to remain on
the basis of subsidiary protection, valid until July 2012. The permit issued on
humanitarian grounds allowed the applicant to work in Italy and to have access
to health care. The permit issued on subsidiary protection grounds entitled the
applicant to an aliens’ travel document, to work, to family reunion, to benefit
from the general schemes for social assistance, health care, social housing and
education under Italian domestic law (see paragraphs 39 and 40 above).
The Court firstly notes that the Italian
Government has provided copies of the residence permits issued in relation to
the applicant, which is why the Court has no reason to doubt the version of
events set out above. As regards the applicant’s contention that the Italian
Government had given contradictory information on where the applicant was
living in August 2008, the Court notes that, all the while the documents
submitted by the Italian Government indeed seem to imply that the applicant had
been housed in two locations at the same time, there is obviously therefore no
indication that the applicant did not have access to housing at the relevant
time. As regards the applicant’s observation that he did not have access to
social support and medical assistance under his humanitarian residence permit,
the Court notes that the relevant information on the Italian legal system shows
otherwise: leave to remain on humanitarian grounds entitled the applicant to
work and to have access to health care (see paragraph 40 above and Mohammed
Hussein, cited above, § 39). The Court further reiterates from the facts of
the case that the applicant had been housed in a reception centre when he
received leave to remain on humanitarian grounds. However, he chose to leave
the reception facility. Under these circumstances, it cannot be considered
wrongdoing on the part of the Contracting State if the applicant was homeless
and lacked access to social support and medical assistance.
After his return to Italy from Germany the
applicant was again lodged in a reception facility in Rome, for approximately
one year, before leaving it again of his own volition. He was subsequently
given leave to remain on subsidiary protection grounds, which entitled him to a
range of services, such as medical treatment, social assistance, social housing
and work.
Again, when the applicant complains that he was
homeless, had to sleep in the streets and lacked subsistence and food, the
Court does not find that this situation resulted from the legal system or from
a practical situation caused by the Contracting State. Quite to the contrary,
it seems that in the applicant’s case he had originally had access to a broad
range of services, such as housing, subsistence and health care, but had
decided voluntarily to leave the housing and support system. When the applicant
now states that because of his mental illness he did not have the capacity to
waive public assistance effectively, the Court observes that there is no
indication in the documents submitted or in the observations by the parties
that could establish the applicant’s mental health status at the relevant time,
or whether the Italian authorities could or should have known that the
applicant might have a psychological impairment of such gravity.
Overall, the Court finds that upon arrival in
Italy the applicant was given housing and residence permits on humanitarian
grounds or on the basis of subsidiary protection. Therefore, he did have access
to health care, to work and later on even to social assistance and social
housing. However, the applicant left that support system of his own volition.
Therefore, and even assuming that the present
complaint does not already fail on the requirements of exhaustion of domestic
remedies pursuant to Article 35 § 1 of the Convention, the Court finds the
applicant’s complaint against Italy manifestly ill-founded within the meaning
of Article 35 § 3 (a) of the Convention, and thus inadmissible pursuant to
Article 35 § 4 of the Convention.
C. The applicant’s complaint against Austria
1. The parties’ submissions
The Austrian Government, referring to the
reopened asylum proceedings in Austria, contended firstly that, in their
opinion, the present application should be declared inadmissible for
non-exhaustion of domestic remedies or struck out of the Court’s list of cases
according to Article 37 § 1 b and/or c of the Convention. They
observed that the Austrian authorities in the fresh asylum proceedings will
have to examine the question whether removal to Italy would violate the
applicant’s rights under Article 3 of the Convention. The guardianship
arrangement for the applicant and any new findings on the applicant’s mental
health status will have to be taken into account. Moreover, it will also have
to be determined whether Italy will be able to guarantee adequate treatment in
line with the applicant’s specific situation in the event of removal to Italy.
The applicant contested that view and stated
that the question of exhaustion of domestic remedies was to be determined by
the Court at the time of the lodging of the application. And in the present
case at that relevant time all remedies had been properly exhausted. Nor did
the reopened proceedings in Austria constitute an effective remedy either,
considering that the applicant’s claim could be refused under those proceedings
too, under the Dublin Regulation, and that the applicant had no right to
request proceedings on the merits in Austria. The applicant claimed that the
Federal Asylum Office in the reopened proceedings still planned to remove him
to Italy. Furthermore, the long duration of the applicant’s proceedings in
Austria that had aggravated his mental health status must also be considered to
breach Article 3 of the Convention.
The applicant referred at length to jurisprudence
of the German Administrative Courts (such as the Frankfurt am Main
Administrative Court, the Stuttgart Administrative Court and the Düsseldorf
Administrative Court) that had ruled in decisions of 2012 that claimants did
not have adequate access to asylum proceedings in Italy, that claimants
returned to Italy could face homelessness, lack of subsistence and food, and
that the conditions for Dublin-returners in Italy might not meet European
standards.
2. The Court’s assessment
The Court firstly turns to the Austrian
Government’s contention that the present application should be struck out of
the Court’s list of cases according to Article 37 of the Convention. The Court
observes that the reopening of the applicant’s proceedings in Austria because
he lacked legal capacity in the first proceedings only concerns the applicant’s
proceedings under the Dublin Regulation. The Austrian authorities have not made
use of the sovereignty clause and have not decided to examine the applicant’s
original asylum request on its merits. The matter of the present application,
namely the complaint of a pending return to Italy and the accompanying
allegedly detrimental consequences of such a return, seems therefore not to
have been resolved within the meaning of Article 37 § 1 (b) of the Convention.
However, the Court does not need to finally decide on this contention, since
the applicant’s complaint is in any event manifestly ill-founded, for the
following reasons.
To examine the applicant’s complaint directed
against Austria, the Court will now consider the question whether the situation
in which the applicant, if removed to Italy, is likely to find himself, can be
regarded as incompatible with Article 3, taking into account his situation as
an asylum seeker and, as such, a member of a particularly underprivileged and
vulnerable population group in need of special protection (see Mohammed
Hussein, cited above, § 76, with a reference to M.S.S. v. Belgium and
Greece, cited above, § 251).
The Court observes that the applicant’s leave to
remain on subsidiary protection grounds has expired in the meantime. However,
the Italian Government has stated in their observations to the Court that the
leave could be renewed, so long as the factors justifying the original grant of
the leave still existed (see paragraph 53 above). That observation is
corroborated by the information on the Italian asylum system summarised in the
decision of Mohammed Hussein: a relevant report cited there states that
it was indeed possible to renew residence permits issued previously, by
applying to the competent police immigration department. While the requirement
for such a request to be accompanied by the original permit document may cause
difficulties, if such papers are stolen or lost they can be replaced (see ibid,
§ 48). In conclusion, the Court finds that the applicant has the opportunity to
request the renewal of his leave to remain on subsidiary protection grounds if
removed to Italy.
Turning to the applicant’s manifestly and
seriously impaired mental health status, the Court also notes that the Italian
Government has already observed that, according to the information so far
received from the Austrian authorities, the applicant would upon return be
considered a vulnerable person and thus would have access to housing (see
paragraph 54 above). Therefore, the Court is able to establish that the
applicant will be eligible for special consideration by the Italian authorities
if returned to Italy as a vulnerable person within the meaning of Article 8 of
Legislative Decree no. 140/2005 (see ibid, §§ 42-45).
The Court thus considers that the Italian
authorities are already aware of the applicant’s particular vulnerability and
need for special assistance. It further trusts that the Austrian authorities
will, in the event the applicant is removed to Italy, provide the Italian
authorities with all the medical and psychological documentation available to
them, to ensure that the applicant is appropriately received there. Under these
circumstances, the Court finds that there is no basis on which it can be
assumed that the applicant will not be able to benefit from the available
resources in Italy or that, if he encountered difficulties, the Italian
authorities would not respond in an appropriate manner to any request for
further assistance (see for comparison Mohammed Hussein, cited above, §
78).
Finally, the Court takes note of the reports
prepared by governmental and non-governmental organisations on the shortcomings
of the general situation and living conditions in Italy for asylum seekers,
recognised refugees and aliens in possession of residence permits on various
grounds (see for the reports ibid., §§ 43-44, 46 and 49). However, the Court
finds that it has not been shown that the Italian reception schemes demonstrate
a systematic failure to provide support or facilities catering for asylum
seekers as members of a particularly vulnerable group of people, as was the
case in M.S.S. v. Belgium and Greece (cited above, see also Mohammed
Hussein, cited above, § 78).
It follows that, at the time of the examination
of the application before the Court, and assuming a comprehensive handover of
relevant information on the applicant from the Austrian authorities to the Italian
authorities in the event he is removed to Italy, the applicant’s complaint
under Article 3 against Austria is manifestly ill-founded and therefore
inadmissible in accordance with Article 35 § 3 (a) and § 4 of the Convention.
D. The Rule 39 of the Rules of Court
In view of the above, it is appropriate to
discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court by a majority
Declares the application
inadmissible.
Søren
Nielsen Isabelle
Berro-Lefèvre
Registrar President
